Category: law

Many of us remember learning about DNA from either science class during our school days, or perhaps, our favourite detective series or film. But what is DNA? How did it get to be used in the criminal justice system in the first place? Most importantly, how is it being incorporated, used and understood by the criminal justice system? This piece provides a short introduction to this area of law in Ireland.

DNA stands for ‘Deoxyribonucleic Acid.’ A sample of DNA can be extracted from our saliva, blood and bone for example. Each person’s DNA is structured differently, meaning that our DNA is unique to each of us alone. DNA profiling was discovered in 1985 by Sir Alec Jeffries and his colleagues in Leicester, and allowed the development of a ‘DNA profile’ from a physical DNA sample. A DNA profile looks similar to a barcode and is a digital representation of a DNA sample. Following this discovery, DNA became a prominent feature in the investigation of crime.

DNA evidence is important in the context of a crime because it can allow for the identification of a specific person at a crime scene and can help to identify unknown bodies. If DNA is found at a scene and then matched with a suspect, it places the suspect at the scene. DNA evidence has been praised because it is often seen as objective, scientific evidence. This has been considered preferable to other forms of evidence such as witness statements which are often subjective and unreliable. Despite these benefits, a problem can arise if DNA is discovered at a crime scene but there are no suspects to test it against. This limits the ability of DNA to aid in an investigation as, although it was obtained from a crime scene, it cannot be compared with anyone. In light of this, the storing or banking of DNA profiles for comparison purposes became desirable for those investigation crimes. DNA storage allows a DNA profile generated from a crime scene sample to be tested against a range of profiles which have already been collected from a pool of people. This is where the central appeal of DNA databasing originated.

Forensic DNA databases organise and store DNA information for the purposes of criminal investigations, and to aid searches for missing or unidentified persons. Therefore, theyallow “rapid comparison” between profiles collected from crime scenes and profiles collected from people who are included in the database (Bieber, 2004: 29). Another frequently mooted (and often debated) benefit offered by DNA databases is the ability to deter people from committing crime, as criminals may have a heightened expectation of being caught.This claim has been disputed however, both because of the difficulties in actually measuring deterrence, but also because criminals may merely adapt to the new circumstances by becoming more forensically aware.The storage of DNA information, even limited information such as a profile, has attracted much debate, particularly in relation to human rights. For example, while databasing is efficient in terms of managing information, a database can also be used “to track, group and classify people with or without their acquiescence” (Jasanoff, 2010: xx). People who have their DNA profiles stored on a forensic DNA database lose privacy, freedom and autonomy, and may be reluctant to engage in active citizenship (such as in protests) given the ability to identify them (Jasanoff, 2010: xxii).

The Irish DNA Database System

Ireland recently incorporated the DNA Database System into law, under the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014. The2014 Act is extensive, but the main purposes of the Actwere neatly summarised by Colm O’Briain (who also provides a wonderfully succinct synopsis of the 2014 Act) (2014: 1-2). The main purposes include an overhaul of the previous legislation and common law practices in the area of taking DNA samples (from several different groups of people such as offenders, suspects and volunteers), the establishment of the DNA Database System, along with providing management and oversight for the System, and the implementing of the Prüm Council Decision, which provides for the international exchange of DNA evidence. Part 8 of the 2014 Actspecifically addresses the DNA Database System, which is currently controlled by Forensic Science Ireland, an independent body based in the Garda Headquarters in Phoenix Park.

Given the potential of DNA databases, one of the central debates which follows is who (or what offences) should qualify for entry onto the database. Typically, sex offenders are mooted as one of the key categories which should be included on a database. However, most databases extend beyond this to include people who have already been convicted of other serious offences such as murder for example. In some jurisdictions, inclusion criteria are based on the length of the sentence which the offence might warrant (premised on the logic that the more serious the offence, the lengthier the punishment). However, it is not always restricted to people who have been convicted of an offence. A DNA database can also include ‘volunteers’, who are innocent people not convicted or suspected of committing an offence. This has led to discussion on the possibility of population-wide databases, although these are often dismissed as being impracticable both on the grounds of human rights and logistical concerns.

In the case of Irish DNA Database System, there are four main ways that a person’s DNA profile can lawfully appear on same (O’Briain, 2014: 9). These are as follows:

If a person is detained for a relevant offence

A ‘relevant offence’ is an offence for which a person may be detained under Section 9 of the 2014 Act. Offences include those under the Offences Against the State Act 1939, along with drug-trafficking offences, murder, false imprisonment, and offences which may be punished by a term of five years imprisonment or more. O’Briain (2014: 8) neatly summarises that the minimum requirement is an offence with a maximum sentence of at least 5 years.

If a person is an offender or former offender

Offenders are identified as those who have been convicted of a relevant offence and are either (1) serving a sentence, on temporary release or subject to a suspended sentence, (2) convicted before or after the commencement of the Act and sentenced to imprisonment, (3) serving a term of imprisonment on foot of a transfer of prisoners provision (so long as the offence involved corresponds to a relevant offence) or (4) subject to the requirements of Part 2 of theSex Offenders Act 2001at the time of the commencement or at any time thereafter.

If a person volunteers to provide a sample and then allows the profile to be entered onto the System

The taking of DNA samples from volunteers is governed by Part 3 of the Act, with the entry of volunteer profiles onto the DNA Database System covered under Section 28.

If a DNA profile was generated under the previous statutory regime, then it may be entered onto the System under transitional provisions.

Prior to the 2014 Act, the Criminal Justice (Forensic Evidence) Act 1990governed the taking of DNA samples. This provision therefore accommodates the transition of samples collected under the previous legislation and allows such samples to be entered onto the System.

The next debate that follows relates to how long we need to retain this information. As a result, retention periods make up a large part of the discourse on the development of DNA databases around the world. One argument for retaining the information for longer periods of time is that it may mean that detection rates are improved. However, retention of such data has also been considered an invasion of privacy. For example, the UK’s DNA database was subject to “serious scrutiny” which culminated in the European Court of Human Rights (ECtHR) reprimanding the UK’s approach to retention of data in the case of S and Marper v United Kingdom (2008) (Kazemian et al. 2011: 49). England, Wales and Northern Ireland were the only countries in the Council of Europe which allowed for the indefinite retention of DNA data of people who were not convicted of a crime. The ECtHR held that this indefinite retention of data was a violation of Article 8 (the right to privacy) of the European Convention on Human Rights (see Prainsack, 2010: 15-16).

Under the 2014 Act, there are different retention regimes for DNA profiles and samples depending on the origin of the sample. For example, volunteers and those who work in the forensic science laboratory have different retention regimes. It is therefore beyond the scope of this piece to explain each of these different regimes. Instead, this piece specifically considers those who are arrested for a ‘relevant’ offence. In Ireland, the retention regime for this category of persons is quite interesting. Under Section 80 of the 2014 Act,if a person is detained for a relevant offence and their DNA profile is entered onto the System, it is only removed in the following situations:

If proceedings against a person are not instituted within 12 months of taking that sample (unless the reason for the delay is because the person has absconded or cannot be found).

In the case that the proceedings have been instituted, then removal will occur if the person is acquitted of the relevant offence, if the charge is dismissed, or the proceedings discontinued.

If the person’s conviction was identified as a miscarriage of justice.

If the person receives an order under the Probation of Offenders Act 1907 for the relevant offence and they have not been convicted of a relevant offence in the 3 years following that order.

This is subject to Section 81, which allows the Garda Commissioner to extend the retention period for 12 months. This power to extend can be done up to a maximum of 6 years (so extending retention by twelve months six times). The person can however appeal this decision to the District Court. However, there is also a provision under Section 93 which allows the Garda Commissioner to apply to the District Court to extend the retention period once there is a “good reason” to do so (see O’Briain, 2014: 16). This indicates that removal is restricted to certain instances, and that retention of the information appears to be preferred by the legislation.

To conclude, DNA forms an important part of investigations into criminal activity and missing persons. DNA evidence can be highly useful, but the potential is limited if there is no source with which to compare it. To combat this limitation, DNA database systems have been established in jurisdictions around the world. Ireland has now joined this group by enacting the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 which governs this area of law.

References

Bieber F. R., (2004) ‘Science and Technology of Forensic DNA Profiling: Current Use and Future Directions’, in DNA and The Criminal Justice System: The Technology of Justice, edited by Lazer D., The MIT Press, Cambridge, pp 23-62.

Is there a copyright in street art? And if so, to what extent can artists use that right to protect and control their artworks? If Banksy wished for his work to remain on the street, and not be sold in a museum in Miami, is there anything he can do to enforce that wish?

In 2018, retail giant H&M launched an advertising campaign which showed a model wearing their clothes, in front of a wall which had been illegally sprayed by street artist Revok. He sent them a letter requesting they cease using his artwork without payment. H&M responded by seeking a declaration from the Eastern District of New York court that illegally placed graffiti is not subject to copyright protection.[1] Although H&M later dropped the suit, and posted on their Twitter that they did not intend to ‘set a precedent concerning public art’, interest in the legalities of protecting street art is clear, and growing. In the time between beginning[2] to write this article for Women are Boring and the time of publication, another lawsuit regarding street art has hit the headlines. Oakley, a glasses manufacturer, was named as the defendant in a Californian lawsuit.[3] Donald Robbins and Noah Daar, better known as Keptione and DJ Rakus, alleged that their artwork was deliberately included in an Oakley advertising campaign without the correct licence.

Street art – that is to say, visual artworks located in public – is not going away. Although the practice of writing on walls stretches back tens of thousands of years,[4] modern graffiti and aerosol painting dates slightly more recently, to the 1970s in New York,[5] then spreading to other locations.[6] The practice of writing and drawing on walls is not new, from London advertisers[7] to loyalist murals in Northern Ireland.[8] The monetisation of that work, however, brings new issues with it. With street art pieces selling for six-figure sums,[9] street art pieces being sold ‘with house attached’,[10] and disputes being taken to court over who owns the wall on which a Banksy mural was placed,[11] street art is a valuable commodity. It was this specific case – Creative Foundation v Dreamland – which ignited my interest in this area of law. Although it was a protracted legal battle over who owned an artwork, the person who created the artwork – anonymous street artist Banksy – was only briefly mentioned in the judge’s decision, to state that he presumably owned the copyright in the work.[12] From there, my interest was ignited. Is there a copyright in street art? And if so, to what extent can artists use that right to protect and control their artworks?[13] If Banksy wished for his work to remain on the street, and not be sold in a museum in Miami, is there anything he can do to enforce that wish? Why might street art be seen as less deserving of protection than other forms of art? Can multinational companies attempted to deny creators of artworks the right to profit from further use of those artworks?

Graffiti, street art, or any form of damage to property, is a criminal offence under s1(1) of the Criminal Damage Act 1971. Local authority officers who suspect that an individual has been writing graffiti or fly-posting are empowered to issue a fixed penalty notice[14] of £100[15] on the spot. They can alternatively prosecute for penalties under the Criminal Damage Act, including a custodial sentence of up to ten years for sufficiently severe damage.[16] Local authorities are also empowered to serve notices on property owners, requiring them to remove defacements to their buildings,[17] or allowing the Local Authority to recover the costs of removing such defacements.[18] While there is much discussion on whether graffiti is art or crime (or both),[19] graffiti prevention and control,[20] urban perspectives on graffiti cultures,[21] there is little discussion of how, or whether, street artists can exercise their rights to control their artwork, and the tensions that might create when juxtaposed against the criminal penalties which exist, as well as the rights of property owners whose works are – arguably – defaced by the artist.[22] Therefore, when works of art are being sold for millions, or reproduced for public consumption, is there any benefit to the artist from this?

Under the Copyright, Designs, and Patents Act 1988, any artistic work, any painting, drawing, chart, map, or plan, is protected by copyright.[23] Copyright is the set of rights which allows the owner of that copyright to control the reproduction and distribution of that work to the public, as well as controlling renting or lending to the public, communicating the work, or doing any of the above with relation to that work.[24] Simply put, an artwork cannot be reproduced or distributed without the permission of the author, or the person who the author assigned their copyright to. This applies regardless of the artistic quality of a work[25] – so a work of majestic skill and passion is protected to the same extent as a work which is badly drawn, badly executed, and visually unappealing – provided the required standard of creativity is met. The standard, which was set out in a European case called Infopaq,[26]states that in order to attain copyright protection, the work must be ‘the author’s own intellectual creation’.[27] This means it need not necessarily be skilled work, simply creative work. Thus, while there may be some street art that does not meet the required standard, it is so unlikely as to be impossible that all street art would fail the standard, meaning it is not a barrier to copyright protection. Thus, from a reading of the Copyright, Designs and Patents Act 1988, together with relevant case law from the European Courts, there is nothing that prevents copyright from arising in works of street art. However, this then runs into tension against the conception of street art and graffiti as discussed above, illegal criminal damage, and subject to criminal penalties. As well as this, there are procedures in place to prevent those who commit crimes from profiting from that criminal activity – which could apply to those who seek to gain economically from graffiti or street art.[28] However, control of one’s art – and the rights granted by copyright – are more than just economic rights. Copyright also grants moral rights, including the right of attribution[29] (to be identified as the author of the work) and the right to object to derogatory treatment of the work.[30] As such, while the Proceeds of Crime Act 2002 may prohibit artists from gaining economically from their criminal vandalism, it would not necessarily prevent the copyright from arising in the first place. It would simply empower the recovery of profits made after the fact.

While there have been multiple attempts by graffiti and street artists to claim copyright in their works, all have settled out of court or been dismissed, including suits against fashion house Moschino,[31] fashion house Cavalli,[32]McDonalds,[33] and American Eagle Outfitters.[34] Equally, street artists have exercised rights which are ancillary to copyright in both the UK and the US. Anonymous street artist Banksy profits[35] from the Artist’s Resale Right,[36] a right which entitles creators of physical artworks to a proportion of the proceeds from the sale of their work. Although not strictly copyright, the Artists Resale Right is closely linked to it. Similarly, a 2018 New York case granted almost $7million dollars in damages to 45 street artists after their (placed with permission) artworks were whitewashed by owner of the buildings they were painted on. This too was not under copyright, but under the Visual Artists Rights Act 1990,[37] which grants specific protections to artworks of recognised stature which are displayed in public.[38]

However, while the granting of ancillary rights may go far to suggest that street art is gaining legitimacy as art which is protected by law, there still is not yet a case precedent which adequately settles the question of whether street art is subject to copyright protections and provisions, whether legally or illegally placed.

All of the cases mentioned immediately above were from US courts, which have similar – although not identical – provisions to the UK. There is, as yet, no similar complaint which has been lodged in the English courts. The only mention in English courts – aside from prosecutions for criminal damage and vandalism – is in the 2015 Creative Foundation v Dreamland[39] judgment. In this case, which concerned the removal of a Banksy mural from a wall in Folkestone for sale in Miami, the dispute was whether the wall (and consequently the mural which was painted on the wall) was the property of the landlord of the building or the tenant occupier. In finding for the landlord, Arnold J stated:

For the avoidance of doubt, I am not concerned with the copyright in the artistic work, which prima facie belongs to Banksy[40]

This presumes not only that the copyright in the work belongs to Banksy, but also that a copyright actually exists in the work. However, it is not a binding declaration, and does not explicitly grant copyright in works of street art.

I would argue that an interpretation of UK copyright law as it stands does include street art and graffiti which reaches the required standard of creativity. There is no statutory provision or case law which denies those automatic protections to street art, and there is arguably case precedent which supports it. Although there are inherent tensions between the criminal nature of some works of vandalism and the granting of artistic rights, depriving artists who paint without permission of the rights which automatically arise for those who paint with permission is an unjustifiable derogation from current law which is not supported by an interpretation of the provisions as they stand. And, as the history of artists taking others to court to protect their rights shows, I am not alone in this stance.

[2] H&M [hm]. (15 March 2018). https://t.co/NMLCiv4iSt [Tweet]. Retrieved from https://twitter.com/hm/status/974384097316491264 accessed 25 June 2018. The tweet consists of an image, with the following text:
H&M respects the creativity and uniqueness of artists, no matter the medium. We should have acted differently in our approach to this matter. It was never our intention to set a precedent concerning public art or to influence the debate on the legality of street art. As a result, we are withdrawing the complaint filed in court. We are currently reaching out to the artist in question to come up with a solution. Thank you for your comments and concerns, as always, your voice matters to us.

[13] You may question why this article does not include any images of works of street art; this is because of its conclusion. I would argue that street art does attract copyright protection, and thus to include pictures of street art without a proper licence would be an infringement of copyright. Even if I took the photographs myself, the artwork which is depicted in the photograph would have a separate copyright, and thus publishing that photo without a licence for the street art work would be a violation of copyright.

[26] Infopaq International A/S v Danske Dagblades Forening (2009) C-5/08. This case concerned whether short summaries of news articles attracted copyright protection as creative works in their own right, or whether they could be freely copied on the basis that they did not meet the minimum standard for copyright protection. The court found that they were sufficiently creative, and were subject to protection.

Lisa is 37 years old and she has just broken up with her long-term boyfriend. She always imagined that this relationship would lead to marriage and children. Lisa is stable and happy in her career. However, she is now worried that if she does not meet someone new, and soon, her biological clock will be merciless with her and she will be left childless. After a visit to a fertility clinic she decides to freeze her eggs, in order to remove the pressure of having to rush into a new relationship. She wants time and is not ready to date again. She wants to raise a child with a committed partner and believes that freezing her eggs will offer her the best chance of ensuring this.

The story of Lisa is fictional, but reflects the current experience of many women who are availing of social egg freezing.

SPERM, EMBRYOS, EGGS AND THE BIRTH OF SOCIAL EGG FREEZING

Sperm has been successfully frozen since the 1950s using a technique called slow-freezing, and embryo freezing has been an established technique since 1992.[1] On the other hand, egg freezing has been considered experimental until very recently. This was mainly due to the fact that eggs contain a higher amount of water than embryos.[2] The slow freezing of eggs results in the formation of ice crystals, which damage the cell and result in lower success rates.[3] Therefore, historically, egg freezing was only accessible to women with cancer or genetic diseases which cause premature infertility, as a small chance to conceive in the future was better than none at all.[4]

The experimental status of egg freezing was lifted in 2012 in Europe[5] and 2013 in the USA[6] due to advances in freezing methods, particularly a process known as vitrification, which involves rapid cooling of the eggs in liquid nitrogen without the formation of ice crystals. This is highly effective for egg freezing. Therefore, egg freezing began to be offered to healthy, fertile women and social egg freezing was born. This is the idea that women freeze their eggs due to lifestyle reasons, which include: to prevent age-related infertility, to postpone motherhood due to their career, to find a suitable partner, to be financially stable, to be psychologically and emotionally ready to become a mother, and to expand their reproductive autonomy.[7]

LAW, AUTONOMY AND FEMINIST BIOETHICS

My research looks at social egg freezing in Europe from a legal and feminist bioethical perspective. I am assessing the impact of the law on social egg freezing in Europe, particularly in the United Kingdom and Ireland to determine if the law enhances or diminishes women’s reproductive options. For instance, my research has identified that Austria, France and Malta have specific law prohibiting egg freezing for non-medical reasons,[8] diminishing women’s options in those countries.

In the context of autonomy, traditional liberal Bioethics tends to have an individualistic and self-sufficient approach, disregarding the influence power relations (“competing social forces”) can have on someone’s autonomy.[9] In a liberal society, freedom is given to the individual to do as they please with their body, as long as they do not cause harm to others.[10] This highlights the rights of an individual and removes the focus on the responsibilities that may arise from that choice, for example, a child and its well-being.[11]

However, the literature demonstrates that women take their relationships and the power structures that surround them into account when making decisions.[12] For instance, a woman that decides to freeze her eggs is not only thinking about herself, but also about her parents (the future grandparents), her future partner or husband, the health of her future baby (as younger eggs are preferable to avoid chromosomal abnormalities), her finances, her maturity, her employment situation and even society (to increase birth rates in an ageing population). Considering the numerous competing social forces, a woman may feel empowered or oppressed by social egg freezing, and that is why my research adopts a relational autonomy approach from Feminist Bioethics, particularly the theory of self-trust developed by Carolyn McLeod.

Trust is a relational aspect of life involving two people: a patient trusts their doctor on the grounds of an established moral relationship (doctor-patient). Self-trust lacks the two entities, as when one trusts oneself, they are optimistic they will act in a competent manner and within their moral commitment.[13] It is relational in the sense that it is moulded by the responses of others and societal norms, as the other gives a truthful and respectful feedback about yourself.[14] Therefore, if a doctor does not inform realistically of potential risks and future outcomes of egg freezing, a woman may make poor choices.

Research shows that women of reproductive age are misinformed regarding cost, process and effectiveness of egg freezing, and that they want to be accurately informed about it.[15] Further, studies[16] demonstrate that residents and health professionals in the area of Obstetrics and Gynaecology lack accurate information about fertility decline due to age, they have conservative opinions, and are reticent to inform healthy patients about social egg freezing.[17] Medical paternalism could explain this behaviour and it needs to be remedied urgently.

EGG FREEZING – HOW IT WORKS

Women need to be aware that in order to freeze eggs, they are collected in the same way as is done for IVF. Women self-inject hormones for approximately 10-14 days to stimulate ovulation and when the eggs are mature, they are collected surgically under sedation, with small risks of infection and bleeding.[18] Hormone injections are not completely risk-free, and although rare, some women may develop ovarian hyperstimulation syndrome (OHSS)[19], characterised by swollen ovaries, a bloated abdomen, pain, nausea, vomiting and, in severe cases, liver dysfunction and respiratory distress syndrome.[20]

Although IVF using thawed eggs is just as successful as using fresh eggs[21], there are no guarantees that if a woman freezes her eggs, she will definitely have a baby – it just increases her chances.[22] That is simply the reality of fertility treatments, and doctors need to be forthcoming with information. Ideally, women will conceive naturally, having frozen their eggs merely as an ‘insurance policy’ and for peace of mind. [23] The age of the woman impacts the quality of the eggs and doctors recommend that egg freezing occurs prior to the late-thirties.[24] There is considerable emphasis on educating young women on how not to get pregnant. Women also need to be educated about their biological ‘clocks’ and the possibilities and limitations of egg freezing.

CAREER AND THE PURSUIT OF ‘MR. RIGHT’ INSTEAD OF ‘MR. RIGHT NOW’

The reasons why women are freezing their eggs also need to be demystified. Baldwin interviewed women who availed of social egg freezing in the UK, the USA and Norway and discovered that they believe that there is a ‘right time’ to become a mother.[25] This is when, ideally, they are financially secure and in a stable relationship with a man who wishes to raise a child.[26] There has been considerable backlash from the media about social egg freezing, particularly since 2014, when Apple and Facebook offered egg freezing as a benefit for their female employees.[27] It raised concerns that women would be forced into it in order to be considered a ‘team player’ and ascend in their careers, treating motherhood as an inconvenience. However, the main reason why women are freezing their eggs has nothing to do with career advancement, it is actually due to the lack of a suitable partner and to avoid future regret.[28] In fact, one of the women interviewed by Baldwin stated: “I think the media really misrepresent women who have children later. I don’t know a single woman who has put off having babies because of her career, not a single woman I have ever met has that been true for.”[29]

Further, Baldwin and her team coined the term “panic-partnering” to express what future regret meant for the women in the study.[30] This is the fear that they might run out of time and settle for any man, rush into having a child purely to avoid childlessness, and regret this later once the relationship fails.[31] These women also rejected the idea of using a donated egg or having a baby alone with donated sperm, as they wanted the ‘whole package’ – a committed relationship and a father to their genetically-related child.[32] Social egg freezing allows women to ‘buy time’ to find this right partner.

There is ongoing research at the London Women’s Clinic to assess why women are freezing their eggs.[33] Zeynep Gurtin from the University of Cambridge chairs open seminars for single women at the clinic and has identified similar women to those from Baldwin’s research: they are highly educated, in their late thirties and early forties and are “frustrated by their limited partnering options.”[34] These women want to find ‘Mr. Right’, not ‘Mr. Right Now’. Gurtin affirms: “as women become more and more successful in educational and career terms, they have begun to outnumber similarly qualified men, and will need to adjust their partner expectations, embark on single parenting, embrace childlessness, or put some eggs in a very cold basket.”[35]

I recently attended one of these seminars and found the London Women’s Clinic to be a highly positive environment, with counselling and support groups available for their clients. The open seminars are a good opportunity for women to obtain realistic information in clear terms, without it being a sales pitch. Research from the USA[36] affirms that a considerable number of women regret freezing their eggs, particularly if a low number of eggs are obtained. They also complained about a lack of emotional support and counselling.[37] Therefore, it is crucial that clinics offer counselling both during and after egg freezing to ensure that women have realistic expectations as to what the technology can and cannot do.

COSTS

Social egg freezing is not covered by health insurance[38] and is therefore a private procedure, costing between £3000 – £3500 in the UK[39] and approximately €3000 in Ireland.[40] This raises questions of social justice and fairness, as only women with greater financial means can access egg freezing for non-medical reasons. Further research focusing on this issue is necessary.

FREEDOM FROM EMBRYO FREEZING AND LEGAL DISPUTES

The success of egg freezing expands women’s reproductive autonomy as it frees them from having to freeze embryos with a partner. In 2007, a British case reached the European Court of Human Rights (ECtHR). In Evans v. United Kingdom, the applicant, Natallie Evans, had ovarian cancer and underwent IVF with her partner to create six embryos to be frozen. When the relationship ended, the ex-partner removed his consent for the embryos to be used. The applicant could no longer extract eggs and the six embryos were her last opportunity to have a genetic child. The ECtHR discussed whether there was a violation of article 2 (right to life) and article 8 (right to respect for privacy and family life). It was decided that since embryos do not have a right to life in the UK that there was no violation of article 2.[41] The Court also found that overruling someone’s withdrawal of consent, even in this exceptional case, would not violate article 8 or exceed the margin of appreciation.[42]

In other words, the ECtHR decided that the ‘right not to procreate’ of the ex-partner overruled the ‘right to procreate’ of the applicant and the embryos had to be discarded. Ms. Evans could have created embryos with a donor sperm, avoiding legal disputes. However, as has been demonstrated, women wish to have a partner to raise a child with. The options for women have expanded and if they freeze their eggs it is their sole decision to use them for IVF with a partner or sperm donor, to donate them to another woman, or for research.

GAMETE STORAGE AND A CALL TO ACTION

Current technology allows eggs to be frozen indefinitely. In the UK, the Human Fertilisation and Embryology Act determines that gametes can be stored for up to 10 years for non-medical reasons and up to 55 years for medical reasons.[43] This reduces the benefits of social egg freezing. For instance, if a woman freezes her eggs at age 27 to ensure she has the best possible eggs, she will have to use them prior to her 37th birthday. There is no time extension, which could cause a considerable amount of pressure for this woman, who believed she was buying herself extra time.

Kylie Baldwin, one of the most prominent researchers of social egg freezing in the UK, has created a petition to convince the UK Government and Parliament that the law needs to change.[44] Signatures from UK citizens and residents are requested at this moment, prior to the 27th of October 2018, in order to be reviewed by the UK Government. This movement is highly important, and I advise all UK citizens and residents to sign it.

In Ireland, the General Scheme of the Assisted Human Reproduction Bill 2017 also adopts this 10-year time limit for non-medical gamete freezing.[45] If the bill remains unaltered when passed as a law it will raise the same issues that are currently being debated in the UK. Perhaps, there is still time for an amendment in the Irish bill.

CONCLUSION

Social egg freezing is quite a recent development and further interdisciplinary research is required to examine the legal, sociological, feminist and economic implications of it. This is needed in order to gain a complete picture of the technology and the impact it has on women’s lives, relationships and society as a whole. There is a risk that women are gambling with their fertility by ‘putting all their eggs in one basket’. That is why social egg freezing must be approached with caution and with realistic expectations by women in order to avoid potential disappointment. However, it is an exciting opportunity, and it is quite clear that the rights and freedoms available to women in relation to their reproductive autonomy have expanded significantly in the last century. This is further evidenced by the very recent successful result in Ireland’s referendum to repeal the 8th amendment (a constitutional ban on abortion which was introduced in 1983 and which allowed for abortion only where a woman’s life was at risk).

I would like to dedicate this post in memory of Grace McDermott, co-founder of Women Are Boring, who I met at the induction of our PhD programme in 2014 and became friends with. She was a wonderful person and I am happy to have had her in my life. I am sure she would have strong opinions about social egg freezing and we would have had some lively discussions about the current state of it.

[10] Catriona Mackenzie, ‘Conceptions of Autonomy and Conceptions of the Body in Bioethics’ in Jackie Leach Scully, Laurel E. Baldwin-Ragaven and Petya Fitzpatrick (eds), Feminist Bioethics: At the Center, on the Margins (The John Hopkins University Press 2010) 72-73

[25] Kylie Baldwin, ‘’I Suppose I Think to Myself, That’s the Best Way to Be a Mother’: How Ideologies of Parenthood Shape Women’s Use for Social Egg Freezing Technology’ (2017) 22 Sociological Research Online 1, 5

In which situations may a State lawfully use force against another State? Is it possible that the law may change over time, so that what would previously be considered an unlawful use of force will come to be seen as lawful?

These questions were at the centre of the debate about the legality of the airstrikes against the Assad government in Syria, carried out by the US, UK and France on 13 April 2018.[1] Yet they also go to the heart of the modern jus ad bellum, the rules of international law that govern the use of force by States in their international relations. My research looks at how the law in this area is structured and aims to identify the processes by which the jus ad bellum can change.

International law, as a decentralised system of States, has no central legislative body that enacts binding laws for the international community. States become subject to international legal obligations primarily by entering into treaties and through the emergence of rules of customary law as a result of the practice of States.

The adoption of the United Nations Charter in 1945 brought about a paradigm shift in how international law regulated war. From a sovereign right and a legitimate policy choice, albeit subject to increasing restriction over the first half of the twentieth century, the use of force by States became subject to a comprehensive prohibition, set out in Article 2(4) of the United Nations Charter.[2] There are only two narrow exceptions to this prohibition, when force may lawfully be used: collective measures authorised by the Security Council under Chapter VII of the Charter, and the right of States to use necessary and proportionate force unilaterally in self-defence, if an armed attack occurs.

In addition to this treaty law rule in Article 2(4) which binds all UN member States, the prohibition on force also developed into a parallel rule of customary international law, binding on all States.[3] It is also widely accepted that the prohibition on the use of force has the status of a “jus cogens” norm of international law, from which no derogation is permitted. Although the existence, definition and content of this category of international legal rules remains contested, typically jus cogens norms protect the fundamental values of the international community and include, for example the prohibitions on genocide and torture.

Thus, the prohibition on the use of force is expressed in three forms: the treaty provision in Article 2(4) of the Charter, a parallel rule of customary international law, and a jus cogens norm. To draw an imperfect analogy with domestic law, imagine the same prohibition of murder existing in a criminal statute, as a common law rule developed by the courts, and as a provision in the Constitution.

This account is necessarily a simplified one that skips over the many debates surrounding the definition of force, self-defence, and the functioning of the collective security system that have arisen since the Charter’s adoption, and some of which remain unresolved. However, fundamentally, this is the international legal framework that regulates the use of force by States today: a comprehensive prohibition on the use of force, with two narrow exceptions.

It is against this backdrop that the UK government’s claimed legal basis for the airstrikes on 13 April 2018 must be assessed. In a legal position published on 14 April, the UK government asserted that “the UK is permitted under international law, on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering.”[4] This is almost certainly not correct under international law as it stands – as noted above, there are only two exceptions to the prohibition on the use of force, neither of which applies in this case. The UK position is inconsistent with the text of the Charter and very few States take the view that a legal right of humanitarian intervention currently exists, while many more have explicitly stated that they do not recognise the existence of any such doctrine.

Indeed, for the UK position to be correct, it would need to be shown that the legal framework set out above had evolved since 1945 so that a new legal basis for the unilateral use of force by states had come into existence. This could be, for example, through a change to the prohibition so that it no longer banned force used for humanitarian purposes, or creation of a third exception of humanitarian intervention. However, given the complex structure of the law in this area, any argument that the jus ad bellum has changed faces a number of obstacles.[5]

First, as described above, the prohibition on the use of force exists in multiple legal rules. Therefore, even if a State could show that a new customary international law rule permitting humanitarian intervention had come into existence, any State claiming to rely on that right would still be in violation of its treaty obligation as a UN member not to breach the prohibition on the use of force in Article 2(4) of the Charter. This situation is further complicated by Article 103 of the UN Charter, which provides that the obligations of UN members under the Charter take precedence over their other obligations. Any State wishing to rely on a right of humanitarian intervention would therefore need to show not only that a new rule of customary law had emerged – which requires widespread and consistent practice by States accompanied by their belief that such a legal rule exists – but also that the UN Charter had been reinterpreted to allow for humanitarian intervention. Demonstrating such a reinterpretation, although possible in principle, is a difficult standard to meet: practice would need to establish the agreement of all UN members that the Charter should now be interpreted in this way.[6]

A second, more difficult, obstacle is presented by the jus cogens status of the prohibition on the use of force. Jus cogens norms can only be modified by another norm of the same character, so it seems that any new legal basis permitting humanitarian intervention would also need to show that it had fulfilled the test for emergence of a new jus cogens norm: acceptance and recognition by the “international community as a whole” that the norm has such a status.[7] This threshold is lower than that required to demonstrate reinterpretation of the UN Charter through subsequent practice, described above, but there are other characteristics of jus cogens norms that may complicate the process of change. Jus cogens norms invalidate contrary practice, depriving it of any legal effect it may have to bring about an evolution in customary law.[8] The presence of the jus cogens norm therefore seems to put those arguing for a change to the prohibition of the use of force in an all-or-nothing position: either they show that the stringent requirements for changing a jus cogens norm have been met, or any practice short of that threshold will not only be in violation of the jus cogens prohibition, but also ineffective to bring about a change in the customary or treaty norms.

In sum, the existence of multiple legal rules prohibiting the use of force, and the characteristics of the Charter and the jus cogens norm that cause them to prevail over conflicting rules, mean that changing the prohibition on the use of force appears to be very difficult indeed. The UK legal position does not explain whether the purported new right of humanitarian intervention on which it relies is understood as a new rule of custom, a reinterpretation of the Charter, or a new jus cogens norm. As shown above, it appears that a plausible claim may need to demonstrate that it is all three, simultaneously.

There are good reasons why it should be difficult to change the prohibition on the use of force. Conceptual and methodological arguments about legal rules gloss over the death, suffering and displacement that is caused by armed conflict; historically, the impact on women has been particularly overlooked.[9] The drafters of the Charter wanted to “save succeeding generations from the scourge of war”[10] by creating a new international legal order where unilateral use of force by individual States became the rare exception and not the rule. Even if the prohibition on the use of force is not universally complied with (what law is?), the current legal framework requires States to justify any use of force in terms of its requirements or face international condemnation, which in itself has a restraining effect. Creating a new legal basis for States to use force – without collective authorisation – would upset the current balance, tilting it in favour of greater unilateralism. In addition, in the specific context of humanitarian intervention, any increased permissiveness is unlikely to benefit all States equally. States that already enjoy greater military and political power will be more able to take advantage of a new right to use force unilaterally. Less powerful States, on the other hand, will see their protection from foreign intervention diminished.[11]

Nevertheless, the arguments remain finely balanced. While a legal right of humanitarian intervention does not exist in international law today, with the Security Council sliding back into gridlock and unable to address threats to peace and humanitarian disasters, international consensus may well shift to accept that intervention without Security Council authorisation is permissible in some circumstances. In such a case, it may be preferable for the international legal framework to be able to evolve to accommodate a new legal basis for the use of force, either within or in addition to the existing exceptions, rather than risk the prohibition being repeatedly violated or ignored, as appears to have been the case with the US, UK and French strikes last month. Developments such as the provision in the Constitutive Act of the African Union for a collective, regional, treaty-based right of humanitarian intervention could provide a less disruptive alternative to increased unilateral uses of force.[12] Yet, as the law stands, this provision appears to be unlawful.

Clarifying the processes by which the rules of the jus ad bellum can change could help provide a shared basis for States and international lawyers to evaluate claims that the rules governing the law on the use of force have changed, and avoid a more unstable situation where States instead abandon or undermine the authority of the prohibition on the use of force or the Charter system. It is this question, of how the prohibition on the use of force and its exceptions can change, that my research will address.

[3] As later confirmed by the International Court of Justice, Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment, I.C.J. Reports 1986, p. 14, at para. 190.

[8] Orakhelashvili, Changing Jus Cogens Through State Practice? The Case of the Prohibition of the Use of Force and its Exceptions, in Weller (ed.), The Oxford Handbook of the Use of Force in International Law (OUP 2015).

[9] Hilary Charlesworth, Christine Chinkin, Shelley Wright, Feminist Approaches to International Law, 85 American Journal of International Law, 613, 645 (1991); Christine Chinkin, A Gendered Perspective to the International Use of Force, 12 Australian Yearbook of International Law 279, 293 (1988-1989).

The relationship between ‘Votes for Women’ and Early Women Lawyers in England and Wales: A glimpse into my PhD research by Laura Noakes

When my friend asked me what I was planning to study for my PhD, I told him I was investigating the relationship between the campaign for women’s suffrage and early women lawyers. He looked at me blankly. I said, “oh, you know—the suffragettes. Think Mary Poppins and the Pankhurst’s and throwing stones at windows.” He thought for a moment and then said, with a very serious expression on his face: “Suffragettes are a kind of Viking, right?”

It was probably at that admittedly hilarious moment that I realised why I thought my research was important. If you weren’t aware, the Suffragettes aren’t a type of Viking. They were women, members of a group dedicated to getting the parliamentary franchise for women. In fact, the Suffragettes were one of a myriad of groups that formed and campaigned for this goal—there were the organisations as diverse as the Actresses Franchise League, the Men’s League for Women’s Suffrage, and my personal favourite, the Gymnastic Teachers’ Suffrage Society. All used diverse methods to bring attention to their cause, from petitions and demonstrations, to accosting MPs and committing arson, to throwing handbills out of dirigible air balloon at 3,500 ft! 2018 marks the centenary since *some* (believe me, it’s a very important distinction) women gained the parliamentary vote.

But suffrage is only a part of my research. I’m also interested in the slightly more niche topic of early women lawyers. Women couldn’t become either barristers or solicitors until after the Sex Disqualification (Removal) Act 1919 was passed and became law. However, they could study law at university from the 1880s, and some women tried to enter the legal profession prior to the 1919 act. Some also practiced ‘unofficially’— at the borders of the legal profession.

I’m looking at this fascinating connection within the context of four women: Eliza Orme, Christabel Pankhurst, Helena Normanton and Chrystal MacMillan. All played pivotal roles in women entering the legal profession, and were also involved in the suffrage campaign. Their legal education helped to inform and influence suffrage tactics, and in turn their participation in the often misogynistic and sometimes violent campaign for Votes for Women prepared them for the trials and tribulation of their later careers.

Eliza Orme

Interestingly, two of these four women never officially practised law. Eliza Orme was born in 1848, and the Sex Disqualification (Removal) Act came too late for her to put her legal expertise into practice. However, she was the first woman in England to graduate with a Law degree in 1888. Eliza soon realised that the legal profession was well and truly shut to women, and so, instead of trying to be admitted in the traditional way, she skirted the rules and set up an office as a “devil” in Chancery Lane. A “devil” is sort of like a trainee barrister, and Eliza would have spent her time drafting documents for counsel. Eliza was involved in the National Society for Women’s Suffrage, the first national group dedicated to getting women the vote. She was also a passionate supporter of the Liberal party, even writing a biography of Sophia Fry, the founder of the Women’s Liberal Federation (WLF). However, cracks between her political ideology and her belief in women’s suffrage began to show when, in 1892, the WLF split over the issue of women’s suffrage. The problem was this: the political leaders of the Liberal party weren’t sold on the idea of women getting the vote. Some in the WLF thought that supporting women’s suffrage should become part of the official policy of the Liberals, whilst others felt that suffrage was too divisive an issue. Eliza fell into the latter group, putting party loyalty above suffrage ideals, and joined the Women’s National Liberal Association in protest. Thus, although Eliza was committed to the principle of women’s suffrage, her activism was somewhat limited, and her legal career was focused on working around the restrictions placed upon her because of her gender. She was involved in legal work till about 1904, and died—having seen the achievement of both suffrage and women lawyers—in 1937.

Christabel Pankhurst

Christabel Pankhurst also never practised law. She is probably the most well known of the women that I’m looking at, as she was the leading strategist of the Women’s Social and Political Union (WSPU), and a member of the famous Pankhurst family. However, she also graduated with a First Class Honours degree in Law from what is now the University of Manchester in 1906. She applied to study at Lincolns Inn, one of the four Inns of Court where barristers are called to the Bar, but was refused. She was also honorary secretary of the short lived ‘Committee to Secure the Admission of Women to the Legal Profession’. As such, although Christabel is better known for her suffrage campaign, she was committed to opening the legal profession to women. Christabel’s legal knowledge permeated her work for suffrage. On October the 13th 1908, Christabel was arrested because she handed out leaflets inviting people to “help the suffragettes rush the House of Commons”. She was charged with conduct likely to instigate a breach of the peace. As a law graduate, Christabel defended herself. She cross examined Cabinet ministers who had witnessed the rush, including Herbert Gladstone and Lloyd George, the latter a trained lawyer. Christabel managed to persuade Gladstone, who was clearly uncomfortable, to admit he that he hadn’t felt endangered by the rush, and also that some of his past speeches could have been interpreted as a similar incitement to violence. In her closing speech. Christabel argued that the case suggested that the independence of the judiciary was in doubt, invoking the famous legal document, the Magna Carta. Although she was found guilty, Christabel directly linked her legal knowledge to her campaign for the vote, and used her legal expertise to frustrate and challenge the Court, and Members of Parliament. For Christabel, who never formally qualified, her activism in the suffrage campaign was a priority. However, she used her legal knowledge to further this activism.

Chrystal Macmillan

Unlike Christabel and Eliza, Chrystal Macmillan did practice as a Barrister after the 1919 Act. Chrystal was a suffragist, not a suffragette. The suffragists used peaceful, constitutional means of campaigning for the vote, in contrast to the WSPU’s more militant strategies. She was the first female Science graduate of the University of Edinburgh, and it was this pioneering activity that led to her first Law related excursion. Graduates from the University were entitled to vote for an MP who would represent that University Seat in Parliament. Chrystal, and four other female graduates, therefore argued that this entitled them to the vote. This was an attempt by Chrystal, and by the suffrage campaigners at large, to circumvent Parliament’s unwillingness for women’s suffrage by asking the Court to give women the vote. Suffrage societies raised money so that Chrystal could take her case all the way to the House of Lords, then the highest Court in the Country. She was the first woman to argue her case in front of the House, however they held that the word ‘persons’ did not include women in the relevant statue. Yes, you read that right—women were not considered persons. After the Sex Disqualification (Removal) Act, Chrystal did enter the legal profession. She joined Middle Temple as a student barrister, was called to the Bar in 1924, and joined the Western Circuit in 1926 — she even founded the Open Door Council, an organisation that aimed to remove the legal restrictions on women. As such, Chrystal Macmillan combined her activism with her career, using both to further her feminist aims.

Helena Normanton

Helena Normanton’s suffrage campaigning differed from both Chrystal and Christabel’s—she was a member of the Women’s Freedom League. The WFL was a militant suffrage group that was formed in 1907 in a spilt from the WSPU. The main difference between the two groups was that the WSPU was autocratic, and the WFL democratic. Helena applied to join Middle Temple before the Sex Disqualification (Removal) Act, but was refused, and immediately on the Act receiving Royal Assent, she reapplied. Helena wasn’t the first woman called to the bar—Academic Ivy Williams beat her—but she was the first woman to practise, she was the first woman to obtain a divorce for her a client, the first woman to prosecute a murder case, and was appointed King’s Counsel in 1949. She was a campaigner for women’s right beyond the vote and making the law accessible for women, even writing a book on the subject—Everyday Law for Women. Helena was a prominent suffrage campaigner, and achieved many ‘firsts’ in terms of women in the Law.

So, why does this all matter? Why these women? Well all four of them were actively involved in the campaign for women’s votes. However, this involvement was diverse—Christabel was the autocratic leader of the suffragettes, Chrystal a constitutional suffragist, Helena was involved in the militant, but democratic Women’s Freedom League, and Eliza was first and foremost committed to the Liberal party. Despite this, they all received a legal education, and all of them utilised this education in their career, and in their suffrage activities. Christabel invoked complex legal concepts in defence of herself and suffragette militancy. Chrystal used her legal reasoning to argue for parliamentary votes for women in the House of Lords. Helena’s feminism extended beyond the vote—she campaigned for women’s rights in reforming divorce law and in keeping her maiden name professionally and on her passport. Eliza worked hard at the periphery of the legal industry, establishing an office on Chancery Lane, and in her political alignment furthered the cause of women, and in particular women’s work.

The reason why I’m so interested in the relationship between the suffrage campaign and early women lawyers, is because I think there is a unique and interesting dynamic between the fight for women to gain parliamentary representation, and the fight to be a legal representative in a court of law. Both invoke concepts of citizenship and of legal rights, and the legislation that allowed the entry of women into the legal profession and the right to vote were passed relatively close to each other—and it is these aspects that inspire the crux of my research. The next time I’m asked what is a suffragette is (NOT a Viking, FYI), and how they fit into my PhD research, I’ll direct the questioner to this article, in the hope that they’ll read it and find these four remarkable women as fascinating as I do!

On Wednesday, the 7th of March 2018, the Government finally passed a motion to ratify the UN Convention on the Rights of Persons with Disabilities– eleven years since Ireland signed the Convention.[1] This marks a historic day in the fight for disability rights and is the culmination of a lengthy campaigning and advocacy among the disability community. Nevertheless, the celebratory mood is somewhat tinged with uncertainty.

As of now, it is unclear what reservations and declarations will be made on the rights to legal capacity, deprivation of liberty and employment.[2] It is also unclear if (or when) Ireland will ratify the Optional Protocol to the Convention, a separate instrument which would allow for individuals and groups of individuals to take a complaint to the UN Committee on the Rights of Persons with Disabilities in the case of an alleged violation of their rights. So, while the Government’s commitment to the rights of persons with disabilities is worth celebrating, it is also important to note that there is still a long way to go before we achieve full equality for people with disabilities in Ireland.

What is the Convention on the Rights of Persons with Disabilities?

The UN Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the UN General Assembly of the United Nations in 2006.[3] The first human rights treaty of the twenty-first century, it quickly gained international support to become one of the fastest ratified treaties in UN history. The Convention adopts a broad definition of persons with disabilities, to include:

[T]hose who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.[4]

The Convention is the product of an international disability rights movement which advocated for the full and effective participation and inclusion of persons with disabilities in international human rights laws. During the treaty negotiations, people with disabilities and their representative organisations and NGO’s were invited to participate directly in the debates and treaty discussions. The motto ‘Nothing about us, without us!’ featured predominantly throughout these negotiations and since become synonymous with the spirit of the Convention – no longer is it acceptable for persons with disabilities to be excluded in decision-making in matters relating to them.

The rights contained within the Convention are wide-ranging and include the rights to non-discrimination, equal recognition before the law, access to justice, a right to liberty, a freedom from torture and other cruel and degrading treatment, among others.[5] Article 3 also sets out a list of guiding principles which are intended to guide the interpretation of the Convention, and include: respect for inherent dignity and autonomy, non-discrimination, full and effective participation, respect for diversity, equality of opportunity and equality between men and women, accessibility and respect for the evolving capacities of children with disabilities.

Ireland’s Progress So Far

Over the past eleven years, the reason for Ireland’s persistent delays in ratifying the Convention was attributed to a number of legislative changes that needed to be addressed to ensure Ireland’s compliance. In 2016, the Disability (Miscellaneous Provisions) Bill was brought forward ‘to remove the statutory barriers to ratification of the Convention.’[6] While this Bill was heralded as one of the final steps towards ratification, it has yet to progress to the Committee Stage in the Dáil. There are also serious concerns about the deprivation of liberty safeguards that are due to be introduced at committee stage – thereby reducing the opportunity for engagement with persons who are affected by this legislation to participate in the debates.[7]

Further clarity is also necessary in regard to how the right to liberty under Article 14 of the Convention will be protected. Article 14 provides an absolute prohibition on the deprivation of liberty on the basis of disability and is one of the core human rights protections outlined in the Convention. The lack of transparency in this area is most worrying when one considers the numbers of people with disabilities living in social care homes unnecessarily, including young people.[8] As of 2017, there were more than 1,200 people under the age of 65 (most with disabilities), living in nursing homes.[9] It is imperative that the 2016 Bill introduces safeguards to address these issues, in line with Article 14, in order to ensure that people with disabilities are not deprived of their liberty unlawfully.

The Assisted Decision-Making (Capacity) Act 2015 has also experienced delays, with a number of key sections yet to be commenced. The Act, which was signed by the President on the 30th December 2015, provides for the abolition of the existing Ward of Court regime and introduced a new Decision Support Service within the Mental Health Commission to support those persons in decision-making. This is in line with Article 12 of the Convention, which provides that all persons with disabilities have the right to equal recognition as persons before the law, and where necessary, should be supported to make decisions for themselves without resorting to substitute decision-making. States Parties are therefore required to put in place support structures to enable people to make their own decisions and abolish existing substitute decision-making regimes (including guardianship or in the Irish context, Wardship).[10]

One of the main aims of the 2015 Act was to repeal the existing Lunacy Regulation (Ireland) Act 1871, which established Wardship and provides for a comprehensive framework of substitute decision-making in Irish law. Section 15 of this Act permits any individual to make an application to the Office of the Wards of Court, where they believe a person is of “unsound mind.”[11] If an individual is admitted to Wardship, they are thereby denied the right to exercise personal decision-making, which may include decisions about where to live, the ability to consent to medical treatment, entering and concluding contracts, and decisions to marry or have a relationship. These decisions are taken over by the President of the High Court, who may also appoint a Committee of the Ward, to make decisions which are in the Ward’s “best interests.” Despite the introduction of the 2015 Act and the growing consensus that similar regimes are contrary to the CRPD, the numbers of applications for Wardship continue to rise.[12] It is estimated that 300 people are made Wards of Court every year in Ireland; of this number the large majority of cases involve dementia or age-related illnesses.[13]

Once the 2015 Act is commenced, it will provide for the review of all existing Wards of Court within three years of the date of the Act’s commencement, introduces new support measures for decision-making and facilitates the making of Advance Healthcare Directives. Although the Act was introduced to meet Ireland’s obligations under the Convention, it is apparent that ‘it clearly does not comply with the requirements of’ Article 12.[14] Of concern, the 2015 Act retains a form of substituted decision-making through the use of decision-making representatives, in such cases where it is believed that the person lacks all capacity and decisions need to be made on their behalf.[15] While it is unclear at the moment what exact reservations or declarations will be made by the Government in respect of Article 12, it is clear that the current 2015 Act is non-compliant with the UN Committee’s interpretation of Article 12 and this will need to be addressed going forward.

Going Forward

It is particularly disappointing that the Government did not announce plans to ratify the Optional Protocol alongside the Convention, which would allow for the Committee on the Rights of Persons with Disabilities to hear claims from or on behalf of individuals in respect of a violation of their rights.[16] A failure to ratify the Optional Protocol would have knock-on effects in respect of Article 13, on the right of access to justice, which is integral to the rule of law and includes the right to have ‘effective access to the systems, procedures, information, and locations used in the administration of justice.’[17] A refusal to ratify the Optional Protocol would inherently limit the effectiveness of the Convention and calls into question Ireland’s commitment towards advancing the rights of persons with disabilities.

Ireland’s long overdue ratification of the UN Convention on the Rights of Persons with Disabilities should be celebrated for the longstanding commitment and perseverance of the disability rights community. But, the journey has only just begun – and it must look beyond legislative changes. It demands a full reconsideration of the way we operate as a society and breaking down all existing barriers, including barriers to health care, education, employment, public transportation and so forth.

As part of this, we also need to raise awareness throughout all sectors of society in order to combat stereotypes relating to persons with disabilities and promote awareness of their rights, dignity and capabilities.[18] Sufficient resources are required to support civil society organisations to continue their work in this area, in the spirit of the ‘Nothing about us, without us’ movement. Article 33(3) of the Convention requires that civil society organisations, and in particular persons with disabilities and their representative organisations, are involved in the monitoring process.

Together, we must commit to the objectives of the Convention, which is to ‘promote, protect and ensure’ the rights of persons with disabilities as we go forward and continue to advocate for full implementation of the Convention.

[11] The Act states that application can be made concerning an individual who is of unsound mind and is incapable of managing their property. When assessing the application, the court must be satisfied that the person and/or their property must be in need of protection or where there is some benefit to the proposed individual in being admitted to wardship.

Recognition and power: gender variance in international law

Walking home with a friend a few nights ago, we fell into a conversation about monsters. My friend, Dr Nicola Moffat[1], had written her PhD thesis on representations of monsters in English literature. Pointing out that the word ‘monster’ derives from the same roots as ‘demonstrate’, she told me that the character that is called a monster is not so much in itself a negative force, but a signifier of something which cannot be understood and named. It is not for nothing that women, pregnancy, and babies are often involved in monster myths – forces misunderstood and even feared by the authors of literature and history becoming vilified and associated with the breakdown of order.

Now, I am not working on literature, on symbolism, or on anything quite so diverting. I’m an international human rights law researcher and I work on issues around gender and sexuality. My conversation with Nicola has remained fresh in my mind because over the course of my studies, I have come to think of law as existing somewhere between a language and a worldview. In many ways, identities legible to the law are conferred recognition and therefore power[2], while identities, lives, and bodies which the law does not comprehend tend to be marginalised and rendered alienated from society. The delegitimisation and demonising of states that cannot be easily understood seems to be as much a part of modern legal systems as it was to writers and artists making up the literary canon. The problem is not the groups being alienated. The problem is the forces which enable this alienation.

Gender recognition, law, and the sociopolitical question

My PhD research focuses on attitudes toward, and frameworks for, the legal recognition of gender variance in international human rights law. I study the manner in which the international human rights institutions, such as the United Nations Treaty Bodies and Special Procedures and the regional Courts of Human Rights, approach issues around gender identity and legal gender recognition. My work also includes case studies on the situation of gender-variant persons in Ireland and India, in order to demonstrate the effects of globalised human rights discourse on domestic legal systems.

What seems to be a straightforward question of law – can a person legally change the gender on their identity documents in this jurisdiction? – is in fact a sociopolitical question of much complexity, involving religion, history, social dynamics, and the relationship between postcolonial societies and the international community. This relationship is a reciprocal exchange of attitudes of permissiveness or repression, complicating the functioning of legal systems on both the national and the international levels.

Legal gender recognition is the facility offered to persons, whose inner and deeply-felt gender identity[3] does not correspond to the sex assigned to them at birth, to change the gender marker on their identity documents such as birth certificate, passport, or driver’s licence. The inability to perform such a change infringes on the individual’s right to autonomy and to free expression, forcing them into a position where they must either present documentation which does not correspond to their gender expression, or to refrain from presenting in the manner which most reflects their gender identity every time they must interact with social institutions.

In many jurisdictions, it is possible to have one’s documents changed via legal or administrative processes, albeit with conditions attached. In all but a handful of jurisdictions[4], the choices of gender marker available are solely the binary options of male or female. The legal gender recognition process also almost universally operates under a set of medical or legal gatekeeping procedures, which I will discuss in more detail below.

In referring to the population of persons with a gender identity incongruous with that which they were assigned at birth, I use the terms ‘gender-variant’ for an individual and ‘gender-diverse’ for a population. The term ‘gender non-conforming’ is also in use. Although in this jurisdiction the term ‘transgender’ is the one most commonly applied to the group, from a global view ‘transgender’ is a Western construct which may not correspond to the subtle categories of identities which can vary from culture to culture. Gender-variant, gender-nonconforming, and trans*/trans are terms which allow for the recognition of binary identified male or female persons; non-binary, third-gender, or genderqueer persons; and hijras, berdaches, fa’afafine, and other culturally specific forms of gender diversity.

Gender recognition in Ireland

In Ireland, gender recognition procedures are governed by the Gender Recognition Act 2015. This Act allows for adults to apply for the issuance of a Gender Recognition Certificate from the Office of the Registrar General granting them legal status in the correct gender. A minor aged sixteen or seventeen may make such an application with the consent of their parent or guardian. The application is made on a basis of self-declaration, meaning that there is no medical or psychological evaluation required to determine the person’s gender-variant status before qualification for a Certificate. This principle ranks Ireland among the most progressive European nations in the field of gender recognition[5], as most other Council of Europe members requires medical or psychological certification or intervention before a person’s gender marker can be changed.

The Act also requires that a review of the law be undertaken in 2017. Among the issues which will be raised this year are the lack of recognition for persons of non-binary gender identities, and the lack of facilities for persons under sixteen to apply for legal gender recognition.

The relative ease with which the GRA 2015 functions belies the two decade-long struggle to enact such a legislation in Ireland, which before the signing of the GRA 2015 had no facility for legal gender recognition in any form. A lengthy campaign of pressure and public-interest litigation from Dr Lydia Foy, along with a fortuitously timed decision of the European Court of Human Rights in Goodwin and I v United Kingdom[6], allowed for a the 2007 High Court decision in Foy v An t-Ard Chláraitheoir 2[7], wherein Mr Justice McKechnie held that the Irish government’s failure to allow Dr Foy to change her gender markers on documentation was incompatible with Ireland’s obligations under the European Convention on Human Rights. This ruling was the catalyst for the ensuing lobbying by the Transgender Equality Network Ireland (TENI) to ensure a strong and human rights-compliant legal gender recognition protocol for Ireland.

Gender recognition in international human rights law

Since the early 2000s, gender recognition has steadily been gaining status in mainstream international human rights law. The 2002 Goodwin and I decision was the first to find in favour of a transgender applicant in the European context, and sparked a series of legal reforms across the continent (including the UK’s Gender Recognition Act 2004). The emergence of gender identity as a concern of the United Nations human rights mechanisms began in 2006 with the Joint Statement on Human Rights Violations based on Sexual Orientation and Gender Identity before the Human Rights Council. In 2007, the signing of the non-binding but influential Yogyakarta Principles[8] marked the first declaration of the human rights of persons of diverse gender identities. Since then, the United Nations human rights bodies, such as the Human Rights Committee[9] and the Committee on the Elimination of Discrimination Against Women[10], have also begun to include the situation of gender-variant persons in their member states during their review procedures.

It is clear that legal gender recognition can confer many benefits on the potential applicant. Without identification documents in the gender corresponding to that in which a person is presenting, access to education, employment, and travel becomes increasingly limited. In order to cross a national border, apply for social benefits, or access healthcare services, they must ‘out’ themselves and risk facing a potentially hostile response. Although sometimes critiqued as conferring mostly formal equality on gender-variant persons[11], availability or lack thereof in relation to legal gender recognition has a marked effect on the substantive equality of the gender-variant individual in society.

Legal recognition also renders gender-variant persons more legible to the institutions of state and, in turn, to society at large. Owning a body which deviates from the normative gender standards imposed by society places the gender-variant person in a vulnerable position, making it more difficult to secure their status, health, and well-being. Western – by which I mean Euro-/Ameri-centric – societies and legal systems are built on binary understandings of gender. This choice of male or female maps gender directly onto sex, and includes a biological determinist viewpoint wherein the shape of one’s body must dictate how one’s mind conforms to societal gender norms. Theorists such as Butler have described how gender is not predicated on physical traits in this manner; it is a continual performance of acts and manners of expression, less something one is than something one does. Furthermore, the social construct of gender is complex enough that no person conforms perfectly to all expected gender norms at a given time. Logically followed through, this incomplete performance means that, as Butler states, “those permutations of gender which do not fit the binary are as much a part of gender as its most normative instance”[12].

Legal recognition and societal legitimacy

What impact does this have on legal systems? A system built on a binary lacks space for the grey areas of gender, the non-conforming permutations. Recognition confers power; legal recognition confers status. The law is a system of power dynamics. It creates categories which become, themselves, constituent of identities. In many jurisdictions, for example, it is necessary for a person seeking legal gender recognition to produce medical certification of their gender variance. The requirements for certification can include confirmation that the person has undergone surgical intervention; references from a psychiatrist or psychologist that the person is suffering from “gender dysphoria”, or the medicalised formulation of gender non-conformity; or records of how long the person has been “living in their gender”. For many gender-variant persons, these can be difficult to obtain or mean that they must adjust their presentation or gender expression in order to comply.

Even though the object of these laws is to liberate gender-variant persons from repression, they often internally demand compliance with other norms. For example, in many instances where the law recognises the existence and legitimacy of binary-identified gender-variant persons, those identifying outside the binary, or presenting in a way which is not recognisable to the legal and medical gatekeepers regulating access to recognition find themselves in a difficult position. Lacking recognition by the law means lacking the protection of the law. Marginalised gender-variant persons are more likely to be the subject of discrimination, exclusion, and violence. There is a reciprocal relationship between legal recognition and societal legitimacy: the doors to societal acceptance often depend on one’s legal status, while legal status depends to a large extent on the views of society and lawmakers.

With this in mind, I find it necessary to problematise the human rights law system as it currently stands. To use a phrase gifted to me by the work of another friend, it is important to look at the “decisions of silence”[13] in the language used by law. The question which needs to be applied to emerging frameworks of legal gender recognition is not solely “which groups are being recognised by this law?”, but equally “which groups are not?”. In Ireland, despite our progressive legislation and the greater societal acceptance of the lives of gender-variant persons which have come with it, for the non-binary person seeking recognition it is as if the law has moved no further than it had before the signing of the 2015 Act.

The ‘T’ in ‘LGBT’ should not be silent

In another facet of this area of law which merits examination, there is a tendency for human rights law to refer to the issues concerning gender-variant persons and non-heterosexual persons as a monolithic category under the heading ‘LGBT issues’. This not only erases the spectrums of identity in those communities, but it risks assuming that the same reforms are needed by both. For example, it is often more pressing for gender-variant persons that healthcare be available on an equal basis than for non-heterosexual persons; equally, the right to marriage equality and to start a family is often very welcome to gender-variant persons, but there is still a fundamental lacuna in their recognition if they cannot obtain a correct set of identity documents. My research has shown that this is a persistent problem from the level of grassroots organisations right up to the international human rights bodies such as the United Nations Treaty Bodies and Special Procedures[14]. As many trans* activists state: the “T” in “LGBT” should not be silent.

I believe in law, written in a human rights-compliant manner, as a mechanism for social change. However, even with advances in the law, gender variance continues to be misunderstood by society. The scaremongering recently seen over the right of transgender persons to use the bathroom corresponding to their gender is evidence of this. Lawmakers in the United States have even introduced legislation banning transgender persons from using a bathroom other than the one which corresponds to the gender on their birth certificate[15], citing a fear for the safety of the cisgender persons also using that restroom.

This brings us back to my thoughts on my friend’s thesis about literary monsters and other various folk devils. Gender-variant persons suffer delegitimisation on many fronts: facing hostility from medical professionals, discrimination in the workplace, the threat of violence, a much higher incidence of socioeconomic disadvantage. Much of this comes down to the vision of the gender-nonconforming body and mind as Other, and the mistrust of that Other. Legal recognition is only one part of the process of demystifying gender variance.

Gender norms are a deeply inbuilt factor in society. They can be used as a form of control; as Foucault stated, ““the norm is something that can be applied both to a body one wishes to discipline and a population one wishes to regularise”. The gender-variant person sometimes seems to appear to lawmakers as an entity to be normalised, regulated, and by naming and recognised, understood. It is the task of human rights lawyers to challenge that viewpoint and to represent gender-variant persons as fully formed rights-bearing subjects; to listen to the voices of the community, and to litigate and legislate according to their wishes.

It would be wonderful to have a conversation about literature and not see in it the manner in which legislators and the public continue to pretend that Otherness is invisible or wrong. Unfortunately, we are not there yet. In the language of fiction, it is possible to represent unknowns by demonising and marginalising them. In the language of law, however, it is vital that we understand that the unknown quantities we discuss are people’s lives, livelihoods, and human rights. We have to challenge the viewpoint that any group of people should be alienated from their rights, and to stand for justice beyond the vagaries of popular opinion – particularly in these frightened and frightening times in which we find ourselves living.

References

[1] If you want to learn more, Dr Moffat blogs at monsterivity.wordpress.com and is @NicolaMoffat on Twitter.

[5] For a global survey on the requirements for gender recognition across jurisdictions, please see ILGA’s Trans Legal Mapping Report: Recognition Before the Law (2016; Chiam, Z., Duffy, S., and Gil, M.G.).

[9] First mention of gender recognition law came in the 2008 review of Ireland, at CCPR/C/IRL/CO/3; the Committee has made other observations such as in its 2011 review of Kuwait, on offences of “wearing the clothing of the other gender”, CCPR/C/KWT/CO/2, paragraph 30.

[10] For example, General Recommendation 33, on women’s access to justice; Concluding Observations from reviews such as that of the Netherlands, at CEDAW/C/NLD/CO/5.

[11] The work of transgender legal theorist Dean Spade problematises the system of gender classification in its entirety.

Former Irish President Mary Robinson (left) and Ethiopia’s Hiroute Guebre Sellasie, the UN’s only female lead mediators

In his December 2016 inauguration speech, the newly elected Secretary General of the United Nations (UN), former Portuguese Prime Minister Antonio Guetterres, indicated that one of the priorities of his term in office would be conflict prevention. He emphasised the need to take more creative approaches to prevent the escalation of conflict, including notably a much stronger emphasis on the use of mediation and creative diplomacy. Prevention, it is said, is better than cure, particularly when conflicts such as Syria, Yemen, South Sudan and Israel/Palestine are proving so difficult to ‘cure’. The emphasis on mediation marks the culmination of a longer process of review within the UN of the ways it responds to violent conflict. A series of reports evaluating the UN’s peacebuilding architecture led to the 2016 adoption of the ‘Sustaining Peace Agenda’, marking a commitment to increased coherence across the organisation in co-ordinating peacebuilding activities.[1] Resolution 2282 (2016) emphasises ‘the importance of a comprehensive approach to sustaining peace, particularly through the prevention of conflict and addressing its root causes, […] and promoting […] inclusive dialogue and mediation…’

This priority is also accompanied by a commitment by the new Secretary General to address a persistent problem within the UN – the need to ensure gender parity.

Resolution 2282 reaffirms the importance of women’s participation in peace and security, as well as stressing the importance of increasing women’s leadership and decision-making in relation to conflict prevention. The bringing together of these two priorities, namely an increased role for mediation in international peace and security and a commitment to increasing the participation of women in leadership roles within the UN, presents a good opportunity to consider the role of women in conflict mediation.

Of course, a commitment to increasing women’s participation in conflict prevention and peacebuilding is not new. Since the Security Council passed its landmark Resolution 1325 in 2000, the role of women in conflict resolution and peacebuilding has been on the Security Council agenda. The ‘Women, Peace and Security Agenda’ has consistently highlighted the underrepresentation of women in peacebuilding and a number of strategies have been implemented to try and redress this imbalance. There is a very significant body of work on the reasons that women should be included in peacebuilding. This work has highlighted the benefits of including women and has highlighted the different roles that women play within peacebuilding,[2] however it has largely overlooked the specific category of women in the role of mediator. This is despite clear policy commitments throughout the WPS resolutions that call for greater representation of women within high-level UN mediation teams.[3] And yet, despite over 10 years work on the WPS agenda, the number of women actively included in peace talks as mediators remains persistently low. Research shows that, of 31 UN-led mediation processes between 1991 and 2011, only 3 were led by women as the chief mediator. This translates into only 2.7 % of all chief mediators.[4] As a result in 2013 the Security Council passed resolution 2122 further requesting the Secretary General to support the appointments of women at senior levels as UN mediators and within the composition of UN mediation teams. By 2014 the UN had appointed two female lead mediators – the former Irish president Mary Robinson, and Hiroute Guebre Sellasie of Ethiopia – and women held a further 14% of senior UN mediation positions.[5] However this figure remains low in light of the Secretary General’s 2010 commitment to increasing the number of women appointed to lead UN peace processes.[6]

The very low statistics of women in the role of chief UN mediator creates an impression that women are simply not engaged in the mediation of violent conflict. Yet, in practice, we know this is not true.

In conflicted states across the globe women are actively involved in the mediation of violent conflict. The roles they play are increasingly being recognised through the creation of networks of women mediators such as those created by Nordic States, by African States, and in support of the peace process in Colombia. So why, when women are so active in mediation at the local level, do we not see more women in high level UN led processes? My research suggests a number of reasons for this apparent contradiction.

Responsibility for increasing the participation of women in mediation is divided across different departments within the UN. The appointment of high-level envoys or Special Representatives of the Secretary General – those we all recognise as the public face of UN-led mediation – lies with the Department of Political Affairs. The appointment of a mediator in this context refers specifically to the appointment of an individual by the Secretary General to pursue conflict diplomacy on his behalf. These are high-level political appointments and are almost exclusively at the discretion of the Secretary General himself. The Envoy will be the person responsible for convening the Track I – or state-level- talks. Women are very under-represented in these positions.

This focus on high-level talks and on the leadership role of international mediators can be contrasted with the approach taken by UN Women, the body tasked with working with member states to further the empowerment of women and support peacebuilding capacity within the State. At this level, mediation happens at a local level, within and between communities. It is at this level that women mediators are most strongly represented.[7] Women are regarded as bringing significant skills to mediation not only while official Track I processes are happening, but before and after those processes, in some cases enabling the process to take place. Through their roles as intermediaries women can create the conditions whereby talks are possible, for example by negotiating the cessation of hostilities to allow humanitarian access or opening channels for dialogue.[8]

The division of responsibility between the DPA and UN Women, both of which have very different operational mandates, creates a potential gap between mediation in local or national contexts and mediation that occurs at the international level. While women may demonstrate strong mediation skills and have considerable experience of mediating disputes, this experience does not result in inclusion in international mediation teams. There is a point at which women mediators tend to drop out of peace talks, and this is the point at which international actors become involved. At this stage, women are not considered to be ‘political’ enough to want to play a role in high-level mediation.

In these circumstances, women’s local experience is often overlooked in favour of bringing in international experts (who may also be women) to consult on the design and delivery of mediation processes. This means that not only do local women become marginalised in the process, but their insight into the conflict dynamics is also lost.

When women return to the process they return in the role of participants in the process—as a vulnerable group to be consulted rather than as the agents of change they have been. Further, the extent of women’s participation is also largely dependent on how willing the mediator is to include them,[9] leaving women inherently vulnerable to exclusion.

Of course not all women who engage in mediation at the community level will seek international opportunities. Similarly, there may be local gender dynamics that make it difficult for local women to step into political positions. But it is patronising to suggest that all women mediators are satisfied with working at the local level. Many have the skill, the experience and the ambition to play greater roles internationally. What is missing is a route to integrate them into formal processes.[10] While the role of Envoy will always be available only to a very small category of people, there is no reason that women should not play more prominent roles within high-level mediation teams.

There may be a very practical reason for the failure of women mediators to make the transition from local or national experience to international experience. It may simply be, for example, that they are not coming to the attention of the DPA at the time at which mediation teams are being selected. Member States therefore have a role to play in the career development and the nomination of women for inclusion within UN teams. If the DPA relies on nominations from Member States for identifying suitable candidates, then States can potentially support the work of both UN Women and the DPA by bridging the gap between the local and the global. This would include identifying women working as mediators within the community sector, the private sector as well as the Women’s sector, thereby casting the net much wider than traditional approaches. It would involve recognising the contribution that women mediators are already making to conflict resolution.

Taking a proactive approach to identifying women mediators, and ensuring that they benefit from the necessary career development opportunities at the national level, would be a big step towards a more coherent approach to ensuring that women’s contribution to mediation is made visible internationally.

Taking such an approach is consistent with the Sustaining Peace Agenda and speaks directly to the need for greater synergy between the relevant agencies responsible for sustaining peace and promoting gender parity.

This is the third and final post on the Ched Evans case (Follow the links for Part 1 and Part 2) and the use of evidence of a complainant’s sexual history in rape trials, Molly Joyce examines the consequences of the Court of Appeal’s decision to give Evans a new trial and the impact his “not guilty” verdict in that retrial may have on the future handling of rape cases and the treatment of complainants in these kinds of cases.

Using Evidence of Previous Sexual History in Rape Cases: The Ched Evans Case, Part 3

Consequences of the Evans Case

The immediate consequences of the Court of Appeal’s decision (discussed here) was that Evans was granted the right to a retrial. His retrial started on 4 October 2016 and lasted two weeks, with a “not guilty” verdict handed down by the jury on 14 October 2016. The jury deliberated for three hours.[1] This conclusion was reached after a five-year campaign by Evans and his supporters, throughout which he maintained his innocence. The case involved two criminal trials and two appeal court hearings as well as investigations into contempt of court allegations and the prosecution of nine people who named X on social media.[2]

While the matter itself is essentially now concluded, the wider impact of the case remains to be seen. It is clear that it has caused quite a lot of controversy and debate around issues including: the admission of evidence about a complainant’s sexual history; the behaviour of footballers off the pitch and the question of their return to the field if they are found guilty of criminal offences; how complainants in sexual offence cases can be fully assured of their anonymity in the social media age; the wider impact of Twitter and other social media on criminal investigations and trials; and the role of alcohol in these kinds of “he said, she said” cases. All of these issues throw up difficult questions about how we investigate, prosecute and respond to sexual offence allegations, particularly in situations involving high-profile people. In this post, however, I remain focused on the legal implications of this case in regards the issue of admitting evidence of sexual history: I will not discuss the other issues outlined above although they are undoubtedly of equal importance.

Legally, this case does not change anything. The processes used by Evans’ lawyers to get him a retrial have been long established and the exception under which Evans’ lawyers were able to get evidence of X’s previous sexual behaviour admitted and considered by a jury has been in place since 1999.

And yet, there has been considerable commentary suggesting that this case puts the law back “probably about 30 years”.[3] The former Solicitor-General Vera Baird has questioned whether the case is in fact a rarity: she suggests that the Court of Appeal has lowered the bar of what is “admissible and relevant” evidence, thereby encouraging defendants to “check out” Evans’ defence and see if they can find other men who have had sex with the complainant in a “similar” way as with the defendant.[4]

40 female Labour MPs have further written to the Attorney-General to ask that the law be amended so as to stop any move towards the more routine use of a complainant’s sexual history in sexual offence trials. Specifically, the Labour MPs have asked that section 41 YJCEA 1999 be amended so as to specify that sexual history evidence can only be used, under the exception used in Evans’ case, where the similar conduct is unusual and out of the ordinary.[5] In advocating this amendment, the MPs have argued that the Court of Appeal’s decision creates a precedent for the increased use of such evidence in circumstances where such evidence was only ever intended by Parliament to be used in cases involving unusual sexual behaviour. The MPs further emphasised that this particular exception, prior to Evans’ case, had only been used once, in a case where the evidence of the complainant’s sexual history concerned bizarre and unusual sexual conduct with the defendant (namely sex standing up inside a children’s climbing frame).[6] The Attorney-General has acknowledged the legitimacy of these concerns and has suggested that reform of the law could be appropriate. He stated, however, that before it can be decided what changes are needed, a number of things need to be looked: “[w]e need to understand more about the decision in this particular case, we need to understand whether a change in the law is appropriate and, if not, whether it is sensible to look at the guidance that is given to judges about when this evidence is admissible and the guidance that judges give to juries about how that evidence should be used.”[7]

Given that the proposed amendments to section 41 YJCEA 1999 only relate to amending the provision under which the Court of Appeal actually allowed the evidence of sexual history to be admitted in Evans’ case, it may of interest to note that the Court of Appeal also suggested in its judgment that the evidence may have been admissible under another provision, namely exception 1 outlined above. Exception 1 states that evidence of a complainant’s sexual history may be admitted if it relates to a “relevant issue” in the trial and that issue is not an issue of consent. The Court of Appeal accepted that the evidence from Mr O and Mr H regarding X’s sexual behavior may have also been “relevant and admissible” as it related to the relevant issue of Evans’ reasonable belief in X’s consent (“reasonable belief” is not an issue of consent in the sense that it is not about whether X actually consented or was capable of consenting, but rather whether Evans reasonably believed she was consenting).[8] It may therefore be the case that the sexual history evidence used in Evans’ case would have been admitted even if the Court of Appeal had considered the relevant provision as applying only to “unusual” behavior.

The concerns voiced by Vera Baird, the Labour MPs and the Attorney-General himself all highlight the possible negative effect that the Evans case could have on reporting of rape and sexual offences. The concern is that victims will be deterred from reporting these offences to the police for fear of having their private lives and previous sexual activities investigated and scrutinised by lawyers, judges and jurors. This is undoubtedly a very valid concern, although it is interesting to note that the Chair and Vice-Chair of the Criminal Bar Association have suggested that the “over-reaction” of women’s groups and others to this case could in fact be what discourages victims from coming forward. Specifically, the Chair suggested that statements to the effect that the case puts the law back 30 years or creates a “rapists’ charter” is actually what is going to “make people think they daren’t report what’s happened to them.” The Vice-Chair added that the Evans case is wholly exceptional and does not change or relax the law, which continues to state that the introduction of evidence about a complainant’s sexual history is forbidden except in “highly unusual circumstances where the trial would be unfair, and a wrongful conviction might result, if the evidence was not given.” [9]

It is my view that the full impact of this case is not yet known. There is undoubtedly a valid concern that the Court of Appeal’s judgment could indicate a relaxation on the part of the judiciary in allowing the use of evidence about a complainant’s sexual history. On the other hand, the Court of Appeal explicitly acknowledged in their judgment that such evidence should be admitted only in rare cases: it was simply their opinion that this was such a rare case. It is therefore unclear at this point whether the Evans case will in fact result in the increased admission and use of complainants’ sexual history in sexual offence trials. Monitoring how often section 41 YJCEA 1999 is successfully invoked in sexual offence cases would undoubtedly help in determining whether complainants’ sexual history is being considered too often in these kinds of cases and thereby help in deciding whether or not the law needs to be changed.

As regards the concern that the Evans case will discourage victims from reporting sexual offences, this is undoubtedly a very real fear. By all accounts, X’s life was destroyed by the constant abuse she received both online and offline: as a result, she has been given a new identity and has moved from the North Wales area.[10] In addition to this, she has had to endure two criminal trials as well as the humiliation of having two previous sexual partners reveal intimate details of her sexual behaviour. There can be no doubt that serious consideration needs to be given to how we protect complainants in sexual offence cases from having their identities illegally published on social media: one possibility is to introduce harsher penalties for those who engage in such conduct.[11] As regards the sexual history aspect, as the above discussion indicates, it is a rare case in which such evidence is admitted and it should be made clear to the general public and potential victims that such evidence is not routinely admitted and that the Evans case was a rarity which should not discourage anyone from reporting suspected rape or sexual abuse. Having said this, if a trend does emerge that indicates the case has resulted in an increased admission of such evidence, that will need to be looked at and potential reforms may need to be introduced in order to ensure complainants are protected from overly-extensive and unwarranted intrusion into their personal lives.

Conclusion

I wrote this blog in order to explain the legal rules that allowed Evans his retrial and allowed him to introduce evidence regarding X’s previous sexual history, eventually leading to his acquittal. The fact is, Evans was acquitted of the allegations of rape made against him and the process he undertook to win this acquittal did not occur by any exceptions made for him particularly. He followed the normal legal processes in order to obtain his appeal hearing before the Court of Appeal and he utilised existing legislative provisions in order to use evidence about X’s previous sexual behaviour as part of his defence. At his retrial, the prosecution was simply unable to persuade the jury, so as to be sure beyond a reasonable doubt, that X had been unable to consent or that Evans had not reasonably believed she had consented. He was acquitted fairly and in line with our criminal justice rules and standards. While his retrial and eventual acquittal would undoubtedly have been much harder to get had he been a poorer man without the significant funding needed to hire private investigators and a top legal appeals team, it is no great surprise that money often can make the difference between conviction and acquittal in the criminal justice system.

Perhaps one of the greatest tragedies of this case then, alongside the impact it has had on X’s life, is the fact that its high-profile nature, and the confusion around the legal intricacies of the case, has confirmed many people’s suspicion that rich and powerful men will get away with sexual crimes they have committed. In my view, the Evans case should not be taken as an example of this: he was acquitted squarely in line with the rules of criminal law and the admission of evidence about X’s previous sexual behaviour was exceptional and pertained to the specific facts and circumstances of this case. It should be made clear to the public that this case does not change the law on sexual offences or the laws around consent, and potential victims, although they should be aware of the potential impact any criminal trial could have on them, should not be deterred from reporting sexual offences as a result.

A Note on the Women Are Boring blog

Women Are Boring is dedicated to disseminating interesting research, opinion and analysis by interesting women. As with all things worth doing, we are aware that research is debatable and worthy of contestation. This is something we encourage. As such, the opinions and views shared are those of each individual article’s author.

[11] In regard the people who published details of X’s name on Facebook and Twitter, they were charged with publishing material likely to lead members of the public to identify the complainant in a rape case, contrary to the Sexual Offences (Amendment) Act 1992, and each fined £624: a fine was apparently the harshest penalty the court could impose for the charge. See “Ched Evans rape case: nine fined over naming of footballer’s victim” The Guardian 5 November 2012, available at: https://www.theguardian.com/uk/2012/nov/05/ched-evans-rape-naming-woman.

Following on from Part 1, which introduced the case of Ched Evans and the issues around admitting evidence of a complainant’s previous sexual history in rape cases, this post continues the discussion of the case and specifically addresses the legal provision that allows a complainant’s sexual history to be admitted as evidence in exceptional circumstances. Similar to Part 1, this piece will continue to refer to the complainant at the centre of the Evans case as ‘X’.

Using Evidence of Previous Sexual History in Rapes Cases: The Ched Evans case, Part 2

Admission of Evidence About a Complainant’s Sexual History

Section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) sets out the basic legal position regarding the admission of evidence about a complainant’s sexual behaviour/history in sexual offence trials. That position is: such evidence is not allowed unless the accused person gets the court’s permission to admit it.[1] The court will only give this permission to an accused person if one of four specific exceptions is met. These exceptions provide for limited situations in which evidence about a complainant’s sexual history/sexual behaviour can be brought into a trial and considered by a jury.

These four exceptions outlined in the legislation are complex. In essence, they provide as follows:

The evidence relates to a relevant issue in the case and that issue is not one of consent.

The evidence is produced in order to rebut or explain any evidence brought forward by the prosecution about the complainant’s sexual behaviour.

The evidence relates to the issue of consent and the sexual behaviour of the complainant to which the evidence relates took place at or about the same time as the incident which is the subject matter of the criminal charge against the accused (i.e. this other sexual behaviour of the complainant took place within hours of the incident that is the subject matter of the criminal proceedings).

The evidence relates to the issue of consent and the sexual behaviour of the complainant to which the evidence relates is so similar to either

(a) the complainant’s sexual behaviour at the time of the incident, or

(b) to any other sexual behaviour of the complainant which took place at or about the same time as the incident,

that the similarity cannot reasonably be explained as a coincidence.

The third and fourth exceptions outlined above essentially relate to situations where the accused alleges the complainant consented to the sexual activity in question and wants to bring in evidence either about the complainant’s other consensual sexual conduct at the time of the alleged sexual offence (the third exception) or the complainant’s similar consensual sexual conduct at other times (the fourth exception).

In addition to the above, before giving permission, the court must:

Be satisfied that, if it doesn’t give permission for such evidence to be admitted, there would be a risk the jury or court would reach an unsafe conclusion on a relevant issue in the case.

Consider whether it is reasonable to assume that the purpose or main purpose of introducing this evidence about the complainant’s sexual behaviour is to dispute the credibility of the complainant as a witness: if it can be reasonably assumed that this is the purpose or main purpose, the evidence will not be allowed.

Be satisfied that the evidence relates to a specific instance (or specific instances) of the complainant’s sexual behaviour i.e. it cannot just be wide-ranging evidence about the complainant’s general sexual behaviour.

Evans argued that the testimony of Mr O and Mr H (two men who had had sexual relations with X before and after the occasion on which Evans had sex with her) about X’s sexual behaviour should be admitted on the basis of the fourth exception i.e. that her sexual behaviour on the occasions she had had sex with Mr O and Mr H was so similar to her sexual behaviour on the 29 May 2011 (as described in evidence by Evans), the similarity could not be explained as a coincidence and tended to suggest X actually consented to the sexual activity with Evans.

Mr O gave evidence that he had had sex with X approximately two weeks after the incident with Evans on 29 May 2011. Mr H indicated that he had had sex with X on a number of occasions between March and May 2011. The core elements of Mr O and Mr H’s evidence was that: on the occasions on which they’d had consensual sex with X, she had been out drinking; she had engaged in sexual intercourse in a particular way; she was an enthusiastic participant and directed her sexual partners to have sex with her in particular positions including “the doggie position”; and she used the distinctive expressions “fuck me harder” and “go harder” with both men.[2] Evans argued that X’s sexual behaviour described by Mr O and Mr H was extremely similar to Evans’ own description of X’s sexual behaviour when he spoke to the police, that this similarity could not be reasonably explained as coincidence and that this evidence supported Evans’ defence that X was capable of consenting and did consent to having sex with him on 29 May 2011.[3]

Whether this evidence of Mr O and Mr H should be admitted was accordingly the key question for the Court of Appeal in considering Evans’ appeal against his conviciton.

The prosecution argued that X’s sexual behaviour as described by Mr O and Mr H was not relevant in this case and that it was not sufficiently similar to Evans’ description of X’s behaviour.[4] In particular, the prosecution emphasised that even if this “fresh evidence” of Mr O and Mr H was credible, it did not reveal any kind of unusual behaviour on the part of X. Rather, X’s behaviour as described by Mr O and Mr H was commonplace and it could be reasonably explained as coincidence that she had used these words while with Evans on 29 May 2011.[5] Alternatively, the prosecution argued that this evidence of Mr O and Mr H was not credible and was not in any regard consistent with Evans’ account. In particular, the prosecution suggested that Mr O and Mr H may have been fed information by people close to Evans in order that they would make statements which would support him in his appeal.[6]

Evans’ lawyers argued in response to these points that the prosecution was isolating each aspect of the sexual behaviour alleged and ignoring the cumulative effect of that behaviour. Specifically, Evans’ lawyers argued that the specific phrases “fuck me harder” and “go harder” were sufficiently similar to satisfy the test of similarity: taking these phrases together with the other behaviour alleged then led to a “compelling” impact and meant this evidence was very relevant.[7] As regards the prosecution’s suspicion of the two witnesses’ motives, Evans’ lawyers responded that if it was the case that these two men were lying to help Evans, they surely would have provided these details at a much earlier stage. Evans’ lawyers further highlighted the two men’s previous good character and suggested that, despite some relatively distant connections with Evans’ friends and family, there was no reason to conclude either man was lying.[8]

In reaching its conclusion, the Court of Appeal noted that this was an unusual case insofar as the only witness to sexual activity and only evidence as to the sexual activity came from Evans himself. In putting forward his defence that X was capable of consenting and did consent, he was therefore able to rely on little more than his own account of her behaviour.[9]

The Court went on to describe Evans’ account to the police of what happened on 29 May 2011 in the hotel room: they emphasised that his account to police described in graphic detail the sexual behaviour of X. This account given to police was extremely similar to the account given of X’s sexual behaviour by Mr O and Mr H, two men who had had consensual sex with X in the days before the alleged rape and the days after it. The Court described this similar behaviour as such: “[o]n each occasion she had been drinking, she is said to have instigated certain sexual activity, directed her sexual partner into certain positions, and used specific words of encouragement.”[10] They concluded that they were satisfied that, on the facts in this case, the evidence of Mr O and Mr H came within the exception 4(a) outlined above i.e. Mr O and Mr H’s evidence related to the issue of consent and X’s sexual behaviour as described in their evidence was “so similar” to X’s sexual behaviour at the time of the alleged rape (as described by Evans), that it could not be reasonably explained as a coincidence.[11]

The Court specifically noted that there did not need to be anything unusual or bizarre about the behaviour in question, despite the prosecution’s arguments to the contrary. Rather, that behaviour simply had to be sufficiently similar that it could not be reasonably explained as a coincidence.[12]

In reaching this conclusion, the Court further found that Mr O and Mr H’s evidence was capable of belief. They noted that the prosecution was unable to point to anything of significance to show that the two men had changed their accounts or been prepared to lie in order to assist Evans and the prosecution was further unable to undermine the two men’s integrity or credibility when cross-examining them before the Court of Appeal. Having said this, the Court noted that the prosecution did possibly have some material that could help undermine these witnesses’ credibility at a retrial and this would allow the two men’s evidence to be thoroughly and rigorously tested.[13]

Before allowing new evidence to be admitted as a basis for quashing a conviction, the Court must be satisfied that there is a reasonable explanation for the failure to call this evidence at the first trial. Here, they found there was a reasonable explanation: Mr O’s existence and potential relevance was not known at the time of the first trial and Mr H, although known to have had a sexual relationship with X, had not given any detail of this sexual activity and this detail and its potential relevance was not therefore known.[14]

The Court emphasised in its judgment that it had reached its conclusion that this evidence was to be admitted with “a considerable degree of hesitation.”[15] The Court further acknowledged that a complainant should be protected from “intrusive and unnecessary questioning” about their sexual history, particularly where that sexual history concerned activity with third parties, and emphasised that such evidence should only be allowed in rare cases. It was their judgment, however, that this was potentially such a rare case.[16]

In these circumstances, and in the interests of ensuring a fair trial in which all relevant and admissible evidence is included, the Court of Appeal concluded that Evans’ conviction for rape should be overturned and ordered a retrial in order that the matter be resolved by a jury.[17] It is quite rare for the Court of Appeal to order a retrial in circumstances where the person has already served their sentence and a retrial is only ordered where the court believes it is in the interests of justice to do so. In this case, the court emphasised that the offence was a serious one and on this basis apparently believed it necessary to have a retrial.[18]

The final post in this three-part series will examine the consequences of the Court of Appeal’s decision in Evans’ case and discuss what the case might mean for future complainants in rape cases.

A Note on the Women Are Boring blog

Women Are Boring is dedicated to disseminating interesting research, opinion and analysis by interesting women. As with all things worth doing, we are aware that research is debatable and worthy of contestation. This is something we encourage. As such, the opinions and views shared are those of each individual article’s author.

[11] Chedwyn Evans v R [2016] EWCA Crim 452, [72]. The Court also noted that this evidence may be admitted on the basis that the issue was not one of consent insofar as it was actually an issue relating to the question of Evans’ “reasonable belief” in X’s consent.